FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 10, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12511

_______________________

D.C. Docket No. 04-00226-CR-LAC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

 JESSIE SCOTT, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_______________________

(March 10, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Jessie Scott appeals his sentence of 120 months imprisonment for

threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B). He

contends that we should vacate his sentence because the district court erred in

three ways: (1) by applying a two-level enhancement pursuant to United States

Sentencing Guidelines § 2A6.1(b)(2) on the ground that he committed an offense

that “involved more than two threats;” (2) by applying a six-level enhancement

pursuant to U.S.S.G. § 2A6.1(b)(1) on the ground that Scott had engaged in

“conduct evidencing an intent to carry out such threat;” and (3) by increasing his

sentence beyond the guidelines range based on the 18 U.S.C. § 3553(a) factors

without giving Scott notice like that required by Fed. R. Crim. P. 32(h) for

departures. 

I.

In October 2001 at the age of eighteen Scott was convicted of carjacking in

the Southern District of Alabama. He was sentenced by United States District

Court Judge Charles R. Butler to sixty months imprisonment. Scott was unhappy

with the sentence he received and mad at the judge who imposed it. 

On September 13, 2004, while serving his sentence at the Coleman Federal

Correctional Complex in Florida, Scott mailed an envelope to Judge Butler at the

United States District Courthouse for the Southern District of Alabama. The
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envelope was marked with a return address which included Scott’s name and

inmate identification number. Inside, there was a letter that stated: “I get out in

2007, So U need to watch Your back Every Step Of The Way . . . I Will Get you

Killed One Day.” It was signed, “TIME BOMb.” 

On September 19, 2004, Scott mailed a second envelope to Judge Butler at

the federal district courthouse with the same return address. That envelope

contained a letter which made reference to blowing up the “fed building,” and

killing “all feds, judges” among other things. Also inside that envelope was

another envelope containing yet another letter that stated: “I shall kidnap your

kids and blow up your luxury car up [sic] . . . Heres [sic] a surprise HAPPY

HALOWEEN [sic].” The “surprise” was that this inner envelope also contained a

white powder. The powder was later identified as a cleaning substance. Judge

Butler’s staff promptly notified the United States Marshals Service of the written

threats. 

Agents from the Federal Bureau of Investigation interviewed Scott in prison

on September 23, 2004. He told the agents that he had mailed the threatening

letters because he believed that the judge had lied to him regarding the sentence he

would receive if he cooperated with the government; Scott believed that he had

been promised a thirty-month sentence rather than one of sixty months. Scott said
4

that he placed the white cleaning substance in the envelope to “scare [the judge]

good.” When asked if he really intended to kill the judge when released from

prison, Scott told the agents: “There are a lot of people that I want to do

something to, but I have not made up my mind when or where I will do it.” Upon

hearing this response, one of the agents remarked that it sounded as if Scott truly

intended to harm the judge and asked him to clarify his statement. Scott just

smiled and said that he had nothing more to say. 

On November 17, 2004, a grand jury sitting in the Southern District of

Alabama handed down a six-count indictment against Scott. Two months later, he

pleaded guilty to the first count, threatening a federal official in violation of 18

U.S.C. § 115(a)(1)(B), and filed a “factual resume,” in which he admitted the

elements of the offense. There was no written plea agreement. 

The Pre-Sentence Investigation report (PSI) set Scott’s base offense level at

12 in keeping with U.S.S.G. § 2A6.1(a)(1) (2004). It recommended a six-level §

2A6.1(b)(1) enhancement on the ground that the offense involved “conduct

evidencing an intent to carry out such threat.” A two-level § 2A6.1(b)(2) 

enhancement was recommended because “the offense involved more than two

threats.” Next, the offense level was adjusted upward six levels pursuant to

§ 3A1.2(b) because all three prerequisites for application of that guideline
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provision were met: the victim was a government officer, the offense was

motivated by that status, and the base offense level was set under Chapter Two,

Part A of the Guidelines (Offenses Against the Person). Finally, Scott was granted

a three-level reduction for acceptance of responsibility pursuant to § 3E1.1(a) and

(b). The enhancements and reduction netted out to a total offense level of 23. 

Scott was found to be in criminal history category IV, which at offense level 23,

provided an advisory guideline range of 70 to 87 months imprisonment. The

statutory maximum sentence for Scott’s offense was 120 months. 18 U.S.C. §

115(a)(1)(B)(b)(4). 

 Scott filed two objections to the PSI that are relevant here. First, he

objected that because the only conduct he had engaged in was mailing the

envelopes, the six-level enhancement for conduct evidencing an intent to carry out

the threats was not warranted. At the sentencing hearing, Scott contested the

government’s theory that the statement he had made to the FBI agents after the

threatening letters had been mailed amounted to conduct evidencing an intent to

carry out the threats. Because there was no evidence of any preparation to carry

out the threats, only evidence of the threats themselves, Scott argued that §

2A6.1(b)(1) was inapplicable.
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The second objection Scott made to the PSI was that, “[w]hile there were

three envelopes, there were only two mailings,” and therefore only two threats for

purposes of § 2A6.1(b)(2), making the two-level enhancement for “more than two

threats” inappropriate. 

The district court overruled both objections at the sentencing hearing on

April 21, 2005. With regard to the six-level enhancement, the court stated that

Scott’s statement to the FBI was “hard to ignore” and was sufficient to establish an

intent to carry out the threat. As for the two-level enhancement, the court stated

that “each letter contained a distinct, independent, separate threat, and . . . there’s

at least three threats contained within those letters.” 

The district court concluded that the PSI was accurate and that the

Guidelines range was 70 to 87 months imprisonment. Additionally, it noted that

neither the parties nor the PSI had identified any grounds for departure. 

After determining the guidelines range the court discussed the § 3553(a)

factors. The court noted that it had considered all of the factors listed in 18 U.S.C.

§ 3553, including “the nature and the circumstances of the offense and the history

and characteristics of the Defendant.” The court continued that Scott’s statements

to the FBI agents indicated an intent to carry out his threats against a judge, his

family, federal employees, and the judicial system. It found that Scott had
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demonstrated a “total disregard for authority and that his family was unable to

control his behavior as a youth.” The court also noted that as a juvenile, Scott was

alleged to have committed physical and sexual abuse while in foster care and to

have destroyed school property. Moreover, at eighteen, Scott had been convicted

of carjacking, an offense involving a firearm. For these reasons, the court

concluded that Scott’s “violent past behavior” outweighed any mitigating factors

such as his age or disadvantaged upbringing. 

The court next considered the need for the sentence imposed to “reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense.” It found that Scott lacked respect for authority

figures, could not control his anger, and had no remorse. The court concluded that

a lengthy term of imprisonment would serve as adequate deterrence and, in fact,

was the only adequate deterrence. The court believed that imposition of the

maximum sentence was necessary to protect the public from future crimes by

Scott. Accordingly, upon consideration of the 18 U.S.C. § 3553(a) factors, and

taking into account the advisory nature of the Guidelines, the court concluded that

the 120-month sentence was reasonable and complied with the general goals of

punishment and purposes of sentencing found in § 3553(a).

Scott objected to the sentence, arguing that it was unreasonable and that he
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had not been given notice of the court’s intention to go above the guidelines range

based on the § 3553(a) factors, much less the basis on which it would do so. The

court responded that it had not relied on any information other than that contained

in the PSI and that although the guidelines might require notice for a departure,

this was “not technically a departure but a sentence outside of the Guidelines.”

II.

Pursuant to § 2A6.1(b)(2), a two-level enhancement to a defendant’s base

offense level is warranted if “the offense involved more than two threats.” 

U.S.S.G. § 2A6.1(b)(2). Application note 3(B) adds that: “If the offense involved

substantially more than two threatening communications to the same victim or a

prolonged period of making harassing communications to the same victim, or if

the offense involved multiple victims, an upward departure may be warranted.” 

U.S.S.G. § 2A6.1, cmt. n.3(B). Scott contends that the district court erred in

applying this § 2A6.1(b)(2) enhancement because he only sent two “mailings,”

and they do not involve “more than two threats.” Specifically, he argues that the

second mailing did not include multiple threats that were distinct enough in nature

and purpose that they should be treated as separate ones.

This Court has never published a decision regarding the application of

§ 2A6.1(b)(2), but a persuasive decision of the Seventh Circuit is on point. See
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United States v. Frazer, 391 F.3d 866, 870 (7th Cir. 2004). In that case Frazer

recorded a message announcing that bombs were planted in two schools and on a

school bus, and then he made three separate phone calls during which he played

that recording. Id. at 868. He placed the first call to the superintendent’s office

and the second call to the high school. Id. During the second call, because he was

placed on hold Frazer hung up after having played only part of the recorded threat. 

Id. He called back immediately and played the message in full. Id. The district

court imposed a two-level enhancement pursuant to § 2A6.1(b)(2) on the ground

that Frazer threatened to blow up bombs at three locations. Id. at 869. 

On appeal, Frazer argued that the district court incorrectly focused on the

number of victims threatened rather than counting the number of threatening acts

(threatening communications or phone calls). Id. at 869. His position was that

the third call should not count because it was a “de minimis ‘addition’” to the

second call. Id. at 868. Frazer argued that “several threats may be combined in a

‘single instance or episode.’” Id. at 871. 

The Seventh Circuit rejected Frazer’s argument, holding that the second or

third calls could not be considered de minimis because all three calls were “‘true

threats.’” Id. In other words, all three calls “conveyed a message that a reasonable

person would foresee a recipient interpreting as an expression of intent to cause
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serious harm.” Id. Frazer’s intent to make only two “threatening

communications” was not determinative because three threats were actually made. 

Id. 

In the course of its decision the Seventh Circuit noted that several circuit

courts have associated the number of threats for § 2A6.1(b)(2) purposes with the

number of communications made (telephone calls or letters). See United States v.

Stokes, 347 F.3d 103, 106 (4th Cir. 2003) (“[T]he phrase ‘more than two threats,’

as used in § 2A6.1(b)(2), refers to the number of threatening communications, not

the number of victims threatened”); United States v. Newell, 309 F.3d 396, 403

(6th Cir. 2002) (recognizing that § 2A6.1(b)(2) takes into account the number of

threats made); United States v. Spring, 305 F.3d 276, 280 (4th Cir. 2002) (“threat”

has the same meaning in § 2A6.1(b)(2) that it has in the underlying federal statutes

that criminalize threats, e.g., 18 U.S.C. § 844(e), 18 U.S.C. § 875(c), and 18

U.S.C. § 876(c)); United States v. Goynes, 175 F.3d 350, 355 (5th Cir. 1999)

(referring to § 2A6.1(b)(2) as the provision that applies to an enhancement based

on multiple threats like multiple threatening letters)). We find this authority from

our sister circuits logical and persuasive. 

With those threat-counting decisions in mind, we conclude that the district

court did not err in applying the two-level enhancement pursuant to § 2A6.1(b)(2). 
11

There were two mailings but the second mailing contained at least two distinct

threats in two letters in two envelopes. The two letters in the second mailing were

contained in separate envelopes and from that the district court could infer, as it

did, that Scott intended to threaten the judge twice. Not only that, but the multiple

threats in the second mailing were distinct in their nature and purpose. See

Stokes, 347 F.3d at 106 n.2 (stating in dicta that “[t]here may be cases in which

multiple threats issued within a single letter or conversation are so distinct in

nature and purpose that they should not be treated as a single threat for purposes

of § 2A6.1(b)(2).”) One letter in the second mailing made reference to blowing up

the federal building. The other one threatened to harm the judge’s children and

contained white powder, which the court reasonably could infer was intended to

simulate anthrax. Because Scott made at least three distinct threats, the district

court did not err in finding that the two-level § 2A6.1(b)(2) enhancement did

apply. 

III.

Under U.S.S.G. § 2A6.1(b)(1), a six-level enhancement is appropriate where

“the offense involved any conduct evidencing an intent to carry out” the threats. 

U.S.S.G. § 2A6.1(b)(1). Scott argues that the district court erred by applying this

enhancement because Scott did not engage in such conduct, but instead he merely
12

made a statement to the FBI while in prison after the offense had ended. Scott

points to the first application note to § 2A6.1(b)(1), which explains that when

determining whether this enhancement is appropriate, “the court shall consider

conduct that occurred prior to or during the offense.” U.S.S.G. § 2A6.1, cmt. n.1. 

“We treat the commentary in the Sentencing Guidelines Manual as authoritative.” 

United States v. Searcy, 418 F.3d 1193, 1195 n.3 (11th Cir. 2005). 

Whether Scott engaged in conduct evidencing an intent to carry out the

threats raises a mixed question of law and fact. See United States v. Barbour, 70

F.3d 580, 586 (11th Cir. 1995). “Although we review the district court’s factual

findings under a clearly erroneous standard, whether the facts evidence an intent to

carry out the threat is a question of law and is reviewed de novo.” Id. (citation

omitted). Whether a statement that was made after the threat may be considered

when determining if a defendant evidenced an intent to carry out that threat is a

pure question of law subject to de novo review. See id. (noting that we decide de

novo the purely legal question of whether conduct occurring before the offense

may be considered). 

We are guided by our decisions in Barbour, 70 F.3d 580, and United States

v. Taylor, 88 F.3d 938 (11th Cir. 1996). In the first case, Barbour traveled to

Washington, D.C., armed with a gun and ammunition with the intent to kill
13

President Clinton, but he left after discovering that the President was abroad. 

Barbour, 70 F.3d at 583. Upon his return, Barbour told several acquaintances

about his trip and his desire to kill the President. Id. He was ultimately convicted

of threatening the President based on the statements he made during those

conversations. Id. At sentencing, the district court found that the Barbour’s trip to

Washington supported a six-level enhancement pursuant to § 2A6.1(b)(1). Id.

On appeal, Barbour argued that the evidence of his trip and the events that

occurred during it did not prove he had an intent to carry out the threats he made

after the trip. Id. at 586. We stated that under the right circumstances pre-threat

conduct may be used to prove a defendant’s intent to carry out a threat. Id. We

listed three factors that a court could consider in determining the probative value

of pre-threat conduct: (1) “the proximity in time between the threat and the prior

conduct;” (2) “the seriousness of the defendant’s prior conduct;” and (3) “the

extent to which the pre-threat conduct has progressed towards carrying out the

threat.” Id. at 587. Barbour had traveled to the capital intending to kill the

President and had left only after discovering that he was out of the country. Id. 

We reasoned that based on that conduct, “there was every reason to conclude” that

Barbour intended to act on the threats he made when he returned home and that he

was likely to do so. Id. We therefore concluded that the district court had
14

properly applied the six-level enhancement pursuant to § 2A6.1(b)(1). Id.

In Taylor, the defendant was convicted of sending threatening

communications through the mail, and at sentencing the district court applied the 

six-level § 2A6.1(b)(1) enhancement. 88 F.3d 938. That court reasoned that the

enhancement was appropriate in light of evidence that Taylor had surveilled the

victims’ home, called them numerous times, hired a private investigator to obtain

information about them, and solicited a cell-mate to murder them. Id. at 943. In

holding that the court properly applied the enhancement for the pre-threat conduct,

we noted that “[t]he essential inquiry for § 2A6.1(b)(1) purposes is whether the

facts of the case, taken as a whole, establish a sufficiently direct connection

between the defendant’s pre-threat conduct and his threat.” Id. We concluded that

this conduct was serious and specifically connected to the threatened parties. Id. 

We also found that these activities were closely linked with the offense of sending

threatening communications through the mail. Id. 

As our Barbour and Taylor decisions indicate, and the commentary to

§ 2A6.1(b)(1) says, the six-level enhancement under that provision is appropriate

where serious conduct committed before or during the offense indicates an intent

to carry out the threat. See Taylor, 88 F.3d at 943; Barbour, 70 F.3d at 586;

U.S.S.G. § 2A6.1, cmt. n.1. Scott’s statement to the FBI does not amount to that. 
15

It was not conduct before or during the criminal offense but simply an answer (and

a somewhat ambiguous one at that) given by Scott while in custody and in

response to an investigator’s question, and it occurred after the crime had been

completed. The district court erred by applying the § 2A6.1(b)(1) enhancement. 

Since the Supreme Court issued its decision in United States v. Booker, 543

U.S. 220, 125 S. Ct. 738 (2005), a district court is no longer required to sentence

within the guidelines range, but is still obligated to correctly calculate the range. 

United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006); United States v.

Crawford, 407 F.3d 1174, 1178–79 (11th Cir. 2005) (“[A]fter Booker, ‘[t]he

district courts, while not bound to apply the Guidelines, must consult those

Guidelines and take them into account when sentencing.’ This consultation

requirement, at a minimum, obliges the district court to calculate correctly the

sentencing range prescribed by the Guidelines.”) (citation omitted); United States

v. Shelton, 400 F.3d 1325, 1332 n.9 (11th Cir. 2005) (“A sentencing court under

Booker still must consider the Guidelines, and, such consideration necessarily

requires the sentencing court to calculate the Guidelines sentencing range in the

same manner as before Booker.”). We have noted that “[a] misinterpretation of

the Guidelines by the district court effectively means that [the district court] has

not properly consulted the Guidelines.” Gibson, 434 F.3d at 1243 (internal
16

quotation marks and citation omitted). 

Notwithstanding the district court’s error, we are not required to vacate the

sentence and remand the case if the court would have likely sentenced Scott in the

same way without the error. See Williams v. United States, 503 U.S. 193, 203,

112 S. Ct. 1112, 1120–21 (1992) (“[O]nce the court of appeals has decided that

the district court misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error was harmless,

i.e., that the error did not affect the district court’s selection of the sentence

imposed.”); United States v. Williams, 431 F.3d 767, 775 (11th Cir. 2005)

(Carnes, J. concurring) (“The Supreme Court and this Court have long recognized

that it is not necessary to decide guidelines issues or remand cases for new

sentence proceedings where the guidelines error, if any, did not affect the

sentence.”); United States v. Blas, 360 F.3d 1268, 1272–73 (11th Cir. 2004)

(declining to decide whether the district court misapplied the guidelines where the

district court would have reached the same sentence regardless of any error). 

If the district court had not erroneously applied the six-level enhancement,

Scott would have had an offense level of 17. That level, when combined with a

criminal history category of IV, would have placed him in the guidelines range of

37 to 46 months, instead of the range of 70 to 87 months. The district court
17

sentenced Scott to 120 months. Even though the district court spent a

considerable amount of time explaining why Scott deserved the maximum

sentence, we cannot say that the court, had it known of the appropriate range,

would have sentenced Scott to the same severe sentence. The primary reason for

our reluctance to do so is the substantial difference between the correct range and

the one that was erroneously used as guidance. The top of the correct range (46

months) is just over half the top of the wrong range (87 months). The step from

46 months to 120 months is significantly greater than the step from 87 months to

120 months. Because it is unclear how the court would have acted, we must

vacate the sentence and remand to the court for re-sentencing on this ground. In

taking this action, we note that if it had wished to do so the district court could

have stated that it would reach the same sentence regardless of how the disputed

§ 2A6.1(b)(1) issue was decided. A statement like that would have convinced us

the error was harmless. See Williams, 431 F.3d at 775 (Carnes, J., concurring).

In vacating the sentence and remanding for a new sentence proceeding, we

do not mean to imply that the district court on remand cannot reach the same

sentence as it did before, provided that it corrects the one error identified in this

opinion. Nor do we imply any view on issues that may arise for the first time at

the re-sentencing. 
18

IV.

Scott’s third contention is that the district court should have informed him

before the sentence hearing that it was contemplating sentencing him above the

guidelines range based on the § 3553(a) factors, and should have given him notice

of the grounds for doing so. He relies on the reasoning of Burns v. United States,

501 U.S. 129, 111 S. Ct. 2182 (1991), and the analogy that Fed. R. Crim. P. 32(h)

provides, while the government in opposition cites the reasoning and language of

United States v. Hofierka, 83 F.3d 357 (11th Cir. 1996). It is an interesting issue,

but one that we have no occasion to decide in this case. Because we are reversing

Scott’s sentence as a result of the § 2A6.1(b)(1) error and remanding the case to

the district court for re-sentencing, any lack of notice at the original sentencing

will not matter. In light of what happened at the first sentencing, Scott is on notice

that the district court may sentence him above the guidelines range and of the

grounds it may use to do so. For that reason, the notice issue has no remaining

relevance to this case.

V.

The sentence is VACATED and the case is REMANDED for further

proceedings consistent with this opinion.